Mr Gopal Subramanium had the option to gracefully accept the decision of the Government not to clear his name to the judgeship of the Supreme Court. Instead, the eminent lawyer and former Solicitor General of India decided to make a public spectacle of the issue. He accused the Union Government, berated the judiciary and questioned the media. He charged the Government of directing the Central Bureau of Investigation to “dig dirt” on him and doctoring a report of the Intelligence Bureau which made negative remarks on him — both of which eventually torpedoed his elevation as a judge. He blamed the media for spreading malicious and inaccurate information about his role in the 2G scam and on being mentioned in the Niira Radia tapes. He blamed the Supreme Court for not defending him before the Government “when all sorts of allegations and diatribe were thrown at me”.
As an affected party, Mr Subramanium has the right to defend himself, but it would have been understandable if the defence had been limited to the issues that the Intelligence Bureau and the CBI have raised. Yet, Mr Subramanium has taken a blatantly political position on the denial of judgeship, and this raises questions on his impartiality. He has hinted that his role as the amicus curiae in the Sohrabuddin encounter case in which senior BJP leader Amit Shah's name figures, could have been the primary reason why the Government withheld its consent to his name forwarded to it by the collegium to select Supreme Court judges. This is strictly Mr Subramanium's contention — a perception which, naturally, rivals of the Bharatiya Janata Party have latched on to with glee.
The former Solicitor General wants us to believe that his interpretation is indisputable, whereas the adverse observations of the Intelligence Bureau and the CBI are not. As a former law officer and noted lawyer, Mr Subramanium should not cast aspersions on the mechanism that has been followed for years in vetting candidates to senior positions in the judiciary — and indeed to all high positions in the Government. If he believes that the IB report against him had been doctored at the incumbent Government's behest, a counter-argument can be forwarded that the supposed clean chit that he had been given in the last days of the previous Government — a clean chit which, he claims, none less than the Chief Justice of India conveyed to him about — too had been doctored. There can be no end to such accusations.
Mr Subramanium perhaps realised that he would not have made the desired media impact if he were to merely refute point by point the issues that went against him. Therefore, he has sought to colour the confrontation into one between the right and the wrong, between an independent-minded individual (which he claims he is) who fights for the truth and a Government which seeks to stifle opinion and wants to appoint pliant judges in the higher judiciary (Does that mean the names the Government has cleared for judgeship are pliant individualsIJ), and even between one who believes in secularism and the other which does not! He goes a step further by converting the fracas into a setback for the courts, when he says, “It's a sad day for the judiciary. The judiciary has been compromised”. He is upset that the Chief Justice of India did not promote his case with the Government.
This is as pompous as one can get. Mr Subramanium believes that just because he lost out on his appointment to the apex court, the independence of the judiciary has come under a cloud. When he had to quit as Solicitor General apparently because he was disgusted by the manner in which the Congress-led UPA Government had been handling the 2G issue and the pressures being brought upon him, he had not gone to town with his frustration. He had then not seen the ‘compromises' being made in the delivery of justice.
In any case, the judiciary's independence is not so fragile as to be rattled by the denial of judgeship to an individual. As the process stand, the collegium submits names of prospective candidates (including from the Bar, though this is rare) to the Government for elevation as a judge of the Supreme Court, and it is for the Government to accept those names or send them back for reconsideration (which effectively means the Government does not approve of them). This may not be the perfect system, which is why the demand to have a judicial appointments commission for selecting judges has been gaining round; the commission could be a reality soon. But Mr Subramanium is not so much on the system of appointing judges. Instead, he sees personal vendetta by the incumbent regime — an allegation that is both serious and irresponsible in the absence of credible evidence.
After having managed to create a drama out of proportion to the issue at hand, Mr Subramanium withdrew his candidature to “uphold my self-respect and dignity”. The cause of self-respect and dignity would have been better served if he had not washed dirty linen in public. He said that he did not want to begin his new innings “with a trust deficit” with the Government, especially when he could end up as the Chief Justice of India. It's not a question of ‘trust'; no Government in the present scheme of things can and should believe that Supreme Court judges should be ‘trusted' to do its bidding or be favourably inclined to it. Trust has got to do with a track record of impartiality, and it is impartiality which had come to be questioned in Mr Subramanium's case. In wildly claiming that the Government withheld his appointment due to the Sohrabuddin issue, it is Mr Subramanium who has demonstrated a lack of trust in the Government.
The noted lawyer's supporters believe that an eminent legal mind has been denied what he rightly deserved. Purely on merit of professional ability, perhaps he deserved to be a judge of the Supreme Court, and even the Chief Justice of India. But many meritorious careers have been cut short as a result of indiscreet conduct of an individual or because the candidate did not get the green signal by the laid-down process of appointment.
The distasteful episode has lessons which lawmakers must learn. First, it is time for them to open up to greater public scrutiny the appointments to higher judiciary. The almost cloak-and dagger approach not just results in the flourishing of conspiracies but also leads to heartburns. Second, adverse remarks made by intelligence agencies against candidates to high positions, especially in the judiciary, should be made available to the candidate in question for his response. If the Government is satisfied with the answer, it should go ahead with the appointment; if not, the matter should rest there, and the candidate concerned must desist from publicly flaunting his martyr-like image. Meanwhile, the Government has wisely refrained from indulging in a slanging match with Mr Subramanium. Were it to enter into a public spat, it may have to bring out from hiding what is being termed as ‘highly incriminating' material against the former Solicitor General.